RELEVANTS LAW

1. HEARSAY EVIDENCE

A statement made out of court that is offered in court as evidence to prove the truth of the
matter asserted. It is not direct. Evidence that is not direct is what a witness testifies in court
about what he heard from a third party who is not himself called as a witness The evidence of
such a witness is inadmissible to prove the truth of the fact stated. Direct evidence is the
testimony of a person who testifies directly to the court in pursuance of his own knowledge of
a fact or observation of a fact.

In Subramaniam's case 1956 MLJ 220 In this case, the accused was charged with
unlawful possession of ammunition His defence was that he had been captured by terrorists
and was acting under duress. The issue that arose whether the statement made by the terrorist
to the appellant which he will be killed if he did not carry the ammunition amounted to
hearsay? The trial judge held that the evidence of his conversation with the terrorists was
inadmissible unless the terrorists testified Subramaniam was convicted He then appealed. The
Privy Council allowed his appeal The hearsay rule was not infringed because his evidence
about what the terrorists had said to him was not adduced in order to show that what the
terrorists had said was true but in order to show that threats had in fact been made.

In Malaysia, section 60 of Evidence Act 1950 lay down that oral evidence must be
direct. Direct evidence can be categorized into oral, written and conduct.

Oral direct evidence has been illustrated in Billy Max Sparks v The Queen [1964] AC
964, where a white man was convicted of indecently assaulting a girl who was just under the
age of four. About an hour and a half after the event, the child told her mother that a coloured
boy did it. The child however did not give evidence at the trial. The Privy Council held that
the trial judge had properly ruled that the mother’s evidence was hearsay and inadmissible.
The mother’s evidence of what her child told her was to prove the identity of the assailant,
therefore inadmissible as amounting to hearsay. In Karam Singh v PP 1967 2 MLJ 25 In this
case, the appellant appealed against his conviction for murder. There was no eyewitness of
the attack on the deceased and the prosecution case was based entirely on the circumstantial
evidence. At the trial, the deceased’s son Harban Singh gave evidence that his father had told
him on the night before he was killed he had a quarrel between him and the appellant. The
fact was, Harbans Singh had not witnessed any quarrel between his father and the appellant.
Instead, his father only told him. The Federal Court held that all evidence of the deceased’s
son even if true, was inadmissible as hearsay evidence and should not have been allowed to
influence the jury in arriving at their verdict.

Direct evidence can be in written form. In Allied ( Bhd v Yau Jiok Hua 1998 6 MLJ 1
14 “It is settle law where a document is sought to be proved in order to establish the truth of
the facts contained it, the maker has to be called. Non compliance with this rule will result in
the contents of the documents being hearsay”. In Sim Tiew Bee v PP 1973 2 MLJ 200 the
appellant had been charged and convicted of the offence of being concerned in the
importation of uncustomed goods At the trial the evidence of the following documents was
tendered and admitted (a) the ship’s manifest without the master or the officer responsible for
the document being called to prove the contents (b) the tally sheet prepared by a tally clerk
who was called to give evidence but who stated that the measurements were taken by a coolie
in the presence of the tally clerk. The Federal Court held that evidence ( and ( should not
have been admitted, unless the absence of the maker could be explained, which then would
have been admitted as an exception to the rule against hearsay as specifically provided by s
32.

Acts can be completely hearsay. For instance, a situation might arise where A nodded

affirmatively in answer to B’s questions “Did C inflict your injuries?” The sign of nodding
made by A cannot be given by B to prove that C did cause the injuries as it amount to hearsay
unless it comes under any of the exception to the rule. In the case of Chandrasekara v The
King 1937 AC 220 the appellant was charged with the murder of a woman by cutting

her throat. At the trial, evidence was admitted that the victim had made certain signs in which
the apparent effect was possibly indicated to the appellant. She was then asked whether it was
the appellant who had cut her throat, and in answering that question she nodded her head She
died shortly afterwards from asphyxia (being unable to breathe normally) resulting from the
injury to her throat. The Privy Council held that evidence as to signs made in answer to
questions put to the deceased was admissible. However statements of witnesses as to what
interpretation they put upon the signs were not admissible.

2. SIMILAR FACT EVIDENCE

Similar fact evidence can be viewed as the evidence of two separate offences bearing a
similar nature. It can be understood as the circumstance or evidence of the accused’s past
misconduct. The general principle is that the evidence of an accused’ pervious conducts,
which are unrelated to the current facts in issue, tendered to prove the current offence are
inadmissible due to its high prejudicial effect. However, in Makin v AG for New South
Wales, similar fact evidence is admissible if it is to show that the current misconduct was
designed to rebut the likelihood of it being accidental, or to rebut the defence raised by the
accused. This rule is safe only to This rule has been accepted by judges and also been
provided under section 14 and section 15 of the Evidence Act 1950. These two sections had
been used together in admitting the evidence of similar fact.

Although Makin case was instrumental in the application of similar fact evidence, an
important development on the similar fact evidence was the decision of the House of Lords in
Boardman v Director of Public Prosecutor [1974] 3 All ER 887. This formulation changes the
emphasis of law in admitting evidence of similar fact. It was no longer that to rebut a defence
but it is its probative value and prejudicial effect that ought to be given utmost consideration.
In determining whether a similar fact is admissible, the test is that its probative force must
override its prejudicial effect as been adopted in the case of Junaidi bin Abdullah v PP where
Mohamed Azmi SCJ in delivering the judgment of the court, considered both cases and held
that:

“On the principle laid down in Makin’s case and Boardman’s case, we are of the
opinion that where the purpose of adducing evidence of similar facts or similar
offences is justifiable on the ground of relevancy and necessity to rebut any defence
which would otherwise be open to the accused (in addition to those under ss14 and
15 of the Evidence Act 1950), it is admissible in evidence provided the probative
value of such evidence outweighs its prejudicial value. There must be a real
anticipated defence to be rebutted and not merely 'crediting the accused with a fancy
defence”.

3. ADMISSION
Definition of Admission
Under Section 17(1) of the Evidence Act 1950 , an admission is defined as a
statement, oral or documentary, which suggest any inference as to any fact in issue or
relevant fact, and which is made by any of the persons and under the circumstances
hereinafter mentioned. With regards to Civil admissions, this section is very much applied in
situations where a party to the proceeding makes a written statement, be it oral or writing of
the relevant facts which are pertinent to the case and the relevant facts. For example, where
the plaintiff admits he was speeding at the time of the accident, in an accident case.
‘Statement’ refers to something that is stated. In Sahoo v. State UP AIR 1966 SC 40, Subha,
Rao J. stated the dictionary meaning of the word ‘statement’ is ‘the act of stating, reciting, or
presenting verbally or on paper and it includes both oral and written statements.’

Differences between admission and confession

Without prejudice rule

The purpose of the without prejudice rule is to encourage the disputing parties to
show their efforts in finding the middle ground where both can agree upon. This rule is to
allow the counsel or legal advisers to speak freely and make concessions without worrying
that the statement made during the negotiation process can be used against them in the court,
if it happens that the negotiation failed to achieve settlement.
 This rule is known as “without prejudice” negotiation or rule and it is found in
Section 23 of the Evidence Act 1950, which states that, in civil cases no admission is relevant
if it is made either upon an express condition that evidence of it is not to be given, or under
circumstances from which the court can infer that the parties agreed together that evidence of
it should not be given. This law which concerns “without prejudice” communications is
clearly seen in our Malaysian Laws and must be adhered to strictly. This case has become the
leading authority on the issue of ‘without prejudice’ rule.

Generally, all of the cases under the scope of the ‘without prejudice’ rule has been
considered on the admissibility of the admissions during negotiation after negotiation failed
as evidence at trial. However, this rule is not an absolute privileged to the parties that hold
upon it. There are many instances that can waive this privileged from protecting the parties
and render their admissions during negotiations is admissible as evidence in court. There are
number of exceptions to the rule, that had been pronounced and acknowledged by the
Malaysian Court.

It can be seen that the requirement laid down in the case of Dusun Desaru Sdn Bhd v
Wang Ah Yu & Ors [1999] 5 MLJ 449. Interestingly in this case, Abdul Malik Ishak J has
developed the test to determine the “without prejudice” rule. The judge stated that “To me,
without prejudice communication can be said to be privileged or a better nomenclature
privileged communication. 2 common features must be present…to be activated:

(a) some individuals must be in dispute and that dispute led them to negotiate
with one another, and

(b) the communication between the parties must contain suggested terms that
would finally lead to the settlement of the dispute.”

It was established that in “without prejudice” rule case must firstly be a case where the parties
in dispute, and the dispute led them to negotiate. Secondly, the communication between the
parties must contain suggested terms that would finally lead to the settlement of the dispute.

4. CONFESSION

Confession is an admission of guilty. Confession has been defined in section 17(2) of

Evidence Act 1950 which states that “an admission made at any time by a person accused of
an offence, stating or suggesting the inference that he committed that offence”. The definition
can be divided into 2 parts, firstly stating that he committed that offence. There is no
difficulty since the accused had expressly stated that he committed the offence, clearly it is
confession. The second part is suggesting the inference. In so far as second part is concerned
that there were different opinion given by the judges in decided cases. In Pakala Narayana
Swami v Emperor AIR 1939 P C 47, the judge did not accept the second part of the definition
of confession, he further said “more over a confession must either admit in terms the offence
or at any rate substantially all the facts which constitute the offence. An admission of gravely
incriminating fact….”. Further, in the case of Anandagonda v The Queen (1962) 28 MLJ 289,
- in this case the appellant with 2 others were tried together with conspiracy for murdering the
deceased by running over her with a car. In this case Privy Council through Lord Guest had
introduced Objective Test in confession the “whether to the mind of a reasonable person
reading the statement at the time and in the circumstance in which it was made it can be said
to amount to a statement that the accused committed the offence or which suggested the
inference that he committed the offence.

Malaysian Federal Court hold to this principle laid down in the case of Anandagonda
in the case of Lemanit v PP (1965) 2 MLJ 26 FC. This case accepted the law enunciated by
Lord Guest “applying objective test to the statement made by the appellant in the case before
us, it appears to us that although it contains protestations of innocence in some respects, it
does contain, taken as a whole without reference to extrinsic facts, an admission suggesting
the inference that he committed the offence for which he has been arrested and on which he
was subsequently charged”

Circumstances under which confessions are to be excluded.

Confession to be admission shall be a confession as laid down in section 17(2).

Confession can be admitted unless for circumstances laid down in section 24,25,26.

Section 24

A valid confession must be made voluntarily as Section 24 states that Section 24 “if
confession is a result of inducement, threat, promise held out by authority…that confession is
not voluntary”. In the case of Dato Mokhtar Hashim v PP (1983) 2 MLJ 232,272 FC,
Abdollcader FJ states that “no statement by an accused is admissible in evidence unless it is
shown by the prosecution to have been voluntary made statement”.
 Law Say Seck & Ors v PP (1971) MLJ 199 laid down 3 element to be satisfied for an
act or omission may amount to an inducement, thereat or promise which are firstly, without
it, the person would not have made a statement. Second, it should be such as would make the
person suppose that the advantage to be gained or evil to be avoided would be of temporal
nature. Thirdly, it should be sufficient in the opinion of the court to make the accused
supposed that he would get the advantage.

In DPP v Ping Lin, a confession obtained as a result of inducement, threat, promise or

as a result of oppressive conduct when a person’s will had crumbled will not be admissible
because such a confession is not voluntarily.

Section 25

Section 25 states that “A confession made by an accused person while is not in a

police custody to a police officer below rank of an inspector is inadmissible. This section
does not apply to a statement made to a custom officer, JPJ or ACA officer. It is applicable
only to Police Officer. This is to prevent the confession given is untrustworthy and to avoid
the danger of admitting a false confession. However, section 25 only excludes the
confessions coming within the definition of section 17(2). In Pakala Narraya Swammy v E
AIR (1934), section 25 S. 25 will not prohibit a confession whether it was made before or
after the investigation for the offence. It is a confession to the police officer made at any time
after the commission of the crime. The word police officer is not defined in the EA or CPC.
The Police Act 1967 define Police officer as a member of a Royal Malaysian Force.
Furthermore, in Chua Beow Huat v PP (1970) 2 MLJ 29 a probationary Inspector is a person
below the rank of an inspector.

Section 26

Applying section 26, even if the accused is in the custody of the police, the confession
is admissible if it was made in the immediate presence of a Sessions Court Judge or
Magistrate. This section is to prevent the police from abusing their powers and safeguard the
accused rights. In Eng Sin v PP 1974 2 MLJ 168, the term custody in section 26 does not
necessary mean formal arrest. It is sufficient that the accused cannot go as he wishes. The
appellant was convicted of murder. One item of evidence was a confession The app had made
a confession to a doctor in the hospital where the police had taken him for treatment. Gill CJ
held that this confession in a medical report to the doctor was caught by section 26 because
the appellant was still in police custody. In Sambu v R 1947 MLJ 16, it was held that the
statement being a confession made by the accused while he was in police custody was
wrongly admitted as it was caught by the ban of section 26.

Section 27

Chandrasekaran & Ors v PP (1971) 1 MLJ 153states that Section 27 appears to be a

confession to the prosecutor. If the accused was in the custody of the police and gives
information to the police that leads the police party to the discovery of the facts so much so
that information that distinctly relates to the discovery of the fact, can give evidence of that
information It is an exception to sec 24,25, 2. PP v Kanapathy A/L Kupusamy (2001) 5 MLJ
20 provided that, for evidence to be admissible under this section, several requirements
should be fulfilled which are, there must first be evidence of fact given by an accused while
he is in the police custody. Next, that information must be given before the discovery of the
fact not recovery of fact. Such information must relate to the fact discovered. Further, that
information must come from the accused not from anybody else. Other essential ingredients
are that the fact of which evidence is sought to be given must be relevant to the issue. Then
that the portion only of the information which relate distinctly to the fact discovered can be
proved, the rest of the statements of the accused being in admissible.

In Mohamed Desa Hashim v PP 1995 3 MLJ 350 “the courts had persistently held
that section 27 was not subjected to s 24 of the same act. PP v Mohamad Musa Amarullah
2002 1 MLJ 561 “s 27 is an independent section and any reliance upon that section to
introduce any relevant evidence must be treated without linkages to the proceeding sections
and in particular s 24 of the EA”. Hasamuddin Talena v PP 2002 2 MLJ 408 “ that
information must be exact and recorded in the language or words used by accused. This strict
test had not been met by the facts of the present appeal. The conviction in the present case
was entirely unsafe. Lastly in PP v Mohd Farid Mohd Sukis 2002 3 MLJ 401, information
leading to fact discovery, the information supplied by the 1st accused that led to the discovery
of the three compressed slabs was admissible. S 24 on Voluntariness is not an issue in the
admissibility of evidence under s 27 of EA. The issue of whether the said evidence ought to
be excluded in the exercise of the judge’s discretion on the ground that the defence to show
balance of probabilities in a trial.

Confession of the co accused (section 30)

 Section 30 provided that “consideration of proved confession affecting person making
it and others jointly under trail for same offence.” Explanation “offence ” as used in this
section includes the abetment of or attempt to commit the offence.

It can be illustrated as A and B are jointly tried for the murder of C. It proved that A
said: B and I murdered C. The court may consider the effect of this confession as against B.
In Goh Joon Tong v PP (1995) 3 SLR 305,315, before section 30 can be invoked the
following conditions must be fulfilled which are firstly, the person must be tried jointly for
the same offence. The phrase “same offence” in the section means “identical offence”.

Second there must be a confession which is proved. In Bhuboni Sahu v The King,
Section 30 applies to confession only and not to a mere statement. It must be a confession
within the meanings of section17 (2) which must be voluntarily made by the co accused.

Thirdly, the confession must be one affecting the maker and the core accused. In Dr
Jainand v Rex, the confession must be one affecting the maker and the Principal accused.
The confession must be such that it implicates the maker substantially to the same extent as
the main accused against whom it is sought to be taken into consideration. However, it has
been held that the confession of the co accused should only be used as a basis of conviction
when other evidence is found pointing to the guilt of accused person.

In PP v Dato’ Seri Anwar Ibrahim (2001) 3 MLJ 313 the court stated “where in
considering whether the confession of the co accused was sufficient to established the guilt of
the accused it was stated in any event an accused can be convicted solely on the basis of a
confession by his co accused. It must be provided the evidences emanating from the
confession satisfies the court beyond reasonable doubt of the accused’s guilt”. In this case,
the confession of the co accused can therefore be used standing on its own against DSAI.

Retraction of confession.

There are no provision for retraction of confession provided in Evidence Act 1950.
However, in common law case, in Ram Prakash vs The State of Punjab, it was laid down that
after retraction of confession, the court shall not convict the accused unless there is
independent corroboration against the accused. However, in Malaysia, different approach was
taken. In Yap Sow Keong v PP, admissibility of retracted confession in evidence is clear, and
put shortly it is that an accused person can be convicted on his own confession, even when it
is retracted, it the court is satisfied of its truth.
5. BURDEN OF PROOF

Meaning of the phrase burden of proof The phrase burden of proof has two distinct
meanings, namely the burden of establishing a case and the burden of introducing
evidence.

Per Salleh Abas FJ in International Times v Leong Ho Yuen 1980 2 MLJ 86

states “For the purpose of this appeal it is necessary to bear in mind the distinction
between the two senses in which the expressions burden of proof and onus of proof
are used Nanji Co v Jatashankar Dossa Ors AIR 1961 SC 1474 1478 and
Raghavamma v Chenchamma AIR 1964 SC 136 143 The first sense, signified by the
expression burden of proof such as referred to in s 101 of the Evidence Act is the
burden of establishing a case and this rests throughout the trial on the party who
asserts the affirmative of the issue. The appellants in the present appeal relied on
justification and fair comment Therefore, the burden of proving these defences rests
entirely upon them Gatley on Libel and Slander, 7 th Edn paras 351 and 354

The second sense referred to as onus of proof, on the other hand, relates to the
responsibility of adducing evidence in order to discharge the burden of proof The
onus as opposed to burden is not stable and constantly shifts during the trial from one
side to the other according to the scale of evidence and other preponderates Such
shifting is one continuous process in the evaluation of evidence According to ss 102
and 103 of the Evidence Act, if the party with whom this onus lies whether initially or
subsequently as a result of its shifting does not give any or further evidence or gives
evidence which is not sufficient, such party must fail.

Legal Burden
Section 101 of EA 1950 provides for Burden of proof.
 (1)Whoever desires any court to give judgment as to any legal right or
liability, dependent on the existence of facts which he asserts, must prove that
those facts exist
(2) When a person is bound to prove the existence of any fact, it is said that
the burden of proof lies on that person
This section provides that the burden of proof rest upon the party who desires any
court to give judgment as to any legal right or liability dependent on the existence of
facts which he asserts. Per Low Hop Bing J in Tenaga Nasional Bhd v Perwaja Steel
Sdn Bhd 1995 4 MLJ 673 states “Section101 1 the plaintiff must prove such facts as
the plaintiff desires the court to give judgment as to its right to claim against the
defendant or the defendant’s liability to pay the plaintiff The burden of proof is on the
plaintiff Section 101 2 In order to succeed here, the plaintiff must prove its claim
affirmatively”.

The shifting of the burden Here the burden of proof rest throughout the trial on the
party on whom the burden lies. Where a party on whom the burden of proof has
discharged it, then the evidential burden shifts to the other party. Per Augustine Paul J
in Tan Kim Khuan v Tan Kee Kiat ( Sdn Bhd 1998 1 MLJ 697 states “It is settled law
that the burden of proof rest throughout the trial on the party on whom the burden lies.
Where a party on whom the burden of proof lies has discharged it, then the evidential
burden shifts to other party what is shifts is the responsibility of adducing evidence to
discharge the burden See also UN Pandey v Hotel Marco Polo Pte Ltd 1980 1 MLJ 4.

Evidential burden
The burden of proof referred to in section 102 is the burden of introducing
evidence Per Augustine Paul JC in Aziz Bin Muhamad Din v PP 1996 5 MLJ 473
states “The burden of establishing a case must be contrasted with the burden of
introducing evidence (the evidential burden) The former is governed by s 101 of the
Evidence Act 1950 The latter is governed by s 102 of the Evidence Act 1950 which
states that “The burden of proof in a suit or proceeding lies on that person who would
fail if no evidence at all were given on either side The burden of establishing a case
rests throughout the trial on the party who asserts the affirmative However, the burden
of introducing evidence in a case shifts constantly as evidence is introduced by one
side or the other”
 The shifting of the burden of introducing evidence The burden of establishing
a case (section 101 rests throughout the trial on the party who asserts the affirmative
However, the burden of introducing evidence in a case (section 102) shifts constantly
as evidence is introduced by one side or the other. Per Lee Hun Hoe J in Wong Sieng
Ping v PP 1967 1 MLJ 56 states “The appellant contended that the learned magistrate
was wrong to say that the burden of proof had shifted to the appellant He submitted
that, subject to the defence of insanity and in offences where onus of proof is specially
dealt with by statute, the burden of proof never shifts to an accused person, in this
case the appellant”.

6. STANDARD/ QUANTUM OF PROOF

Standard of proof means the degree of proof required for any fact in issue in a
litigation, which is established by assessing the evidence relevant to it.

There are two standard of proof which are balance of probabilities and beyond
reasonable doubt.

Balance of probabilities also known as the preponderance of the evidence, is

the standard required in most civil cases. The standard is met if the proposition is
more likely to be true than not true. Effectively, the standard is satisfied if there is
greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v.
Minister of Pensions, [1947] 2 All ER 372 described it simply as "more probable than
not.“ It is settled law in Malaysia that the standard of proof in civil cases is the
preponderance of probabilities. The more serious the allegation, the heavier is the
balance of probabilities required.

Beyond reasonable doubt is the standard required by the prosecution in most

criminal cases within an adversarial system and is the highest level of burden of
persuasion. This means that the evidence established by the Prosecutor must be
proven to the extent that there is no “reasonable doubt” in the mind of a reasonable
person that the defendant is guilty. It establishes that the standard of proof in criminal
cases imposed on the prosecution in Malaysia, is the quantum laid down in the case of
Woolmington v. DPP [1935] AC 462, i.e., proof beyond a reasonable doubt. In Miller
v Minister of Pension [1947] 2 All ER 372, the court stated “That standard of proof is
well settled. It need not reach certainty, but it must carry a high degree of probability.
Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt”.
In PP v. Yuvaraj [1969] 2 MLJ 89, Where the burden of proving a defence or
rebutting a presumption is on the accused, the burden on him is the same as that
applied in civil proceedings, i.e. on a balance of probabilities”.

Allegation of Election Offence?

This relates to bribery and corrupt practices in the running of elections as covered by
the Election Offences Act 1954 (Act 5). What is the quantum by the unsuccessful
candidates? Based on the title of the Act, “Offences” it must be of a criminal standard.
In Wong Sing Nang v Tiong Thai King [1996] 4 MLJ 461, Charles Ho J stated that “It
is quite clear from the authorities cited that because an allegation of corrupt practice is
of a quasi-criminal nature in as much as a finding of corrupt practice entails penal
consequences, such allegation must be proved by the petitioner beyond reasonable
doubt”. In Re Pengkalan Kota Bye-Election [1981]1MLJ 265 at p 267 Abdoolcader J
(as he then was) said: The corrupt practice of bribery which is a criminal offence by
statute must be strictly proved beyond reasonable doubt by clear and unequivocal
evidence, and the inducement to vote or refrain from voting must be exercised upon
one or more electors or voters who must be identified as the objects to whom it was
made or addressed.

When the case is depends wholly or substantially on Circumstantial Evidence?

In McGreevy v DPP [1973] 1 WLR. 276, the Court of Criminal Appeal of Northern
Ireland said: “Whether at a criminal trial with a jury, in which the case against the
accused depends wholly or substantially on circumstantial evidence, it is the duty of
the trial judge not only to tell the jury generally that they must be satisfied of the guilt
of the accused beyond reasonable doubt…”. In Dato Mokhtar Bin Hashim v PP
[1983] 2 MLJ 232, Abdoolcader FJ said:“ Where circumstantial evidence is the basis
of the prosecution case the evidence proved must irresistibly point to one and only
one conclusion, the guilt of the accused, but in a case tried without a jury the failure
by the court to expressly state this is not a fatal and it would suffice if it merely says
that it is satisfied as to the guilt of the accused beyond reasonable doubt…”
In Chang Kim Siong v PP [1968] 1 MLJ 36, the appellant appealed against his
conviction for murder. The evidence against the appellant was circumstantial and Pike
CJ held: “The burden on the prosecution where the evidence is of a circumstantial
nature is a very heavy one and that evidence must point irresistibly conclusion.” Per
Suffian LP in Jayaraman & Ors v PP [1982] 2 MLJ 306(FC) “When the prosecution
relies wholly on circumstantial evidence, the quantum of proof is that of proof beyond
reasonable doubt…”.
As laid down by the case of Jayaraman and Dato Mokhtar Hashim v PP [1983] 2 MLJ
232 are clearly influenced by McGreevy, it is clear from the above that the quantum
of proof in a case involving circumstantial evidence is still proof beyond reasonable
doubt.
The Federal Court in Jayaraman concluded that the so-called‘ irresistible
conclusion test” is merely another way of saying proof beyond reasonable doubt. It is
noted the later decisions did not attempt to show that the learned Suffian LP was
wrong in Jayaraman’s case. The courts seem to have accepted that the irresistible
conclusion test is just another way of finding proof beyond a reasonable doubt.
Therefore, it is submitted that the quantum in cases where the prosecution relies
entirely on circumstantial evidence is still the same as the quantum imposed on the
prosecution in criminal cases, i.e., proof beyond a reasonable doubt.
CONTEMPT of court

Lord Denning MR in In Re Bramblevale Ltd. [1970] Ch. 128. The Master of the Rolls
said (at p. 137) “ A contempt of Court is an offence of a criminal character. A man
may be sent to prison for it. It must be satisfactorily proved. To use the time honoured
phrase, it must be proved beyond reasonable doubt. It is not proved by showing that,
when the man was asked about it, he told lies. There must be some further evidence to
incriminate him. Once some evidence is given, then his lies can be thrown into the
scale against him”. This can be seen in Lee Lim Huat v Yusuf Khan [1997] 2 MLJ
473, 485.

Fraud
In Ang Hiok Seng v Yim Yut Kiu [1997] 2 MLJ 45 Azmi FCJ. Stated “Where the
allegation of fraud in civil proceedings concerns criminal fraud such as conspiracy to
defraud, or misappropriation of money or criminal breach of trust, it is settled law that
the burden of proof is the criminal standard of proof beyond reasonable doubt, and not
on a balance of probabilities. However, where the allegation is entirely founded on a
civil fraud and not on a criminal conduct or offence, the civil burden is applicable”.
In Saminathan v Pappa [1981] 1 MLJ 121 where Suffian LP in FC cited Lord
Atkin in Narayanan Chettyar v Official Assignee, Rangoon AIR [1941] PC 93, 95 for
the proposition that the defendant must prove fraud not on the balance of probabilities
but beyond reasonable doubt for the purpose of proving the plaintiff’s name as
registered owner under s 340 of the National Land Code 1965. The criminal standard,
ie proof beyond reasonable doubt, was also applied by the PC in Datuk Joginder
Singh & Ors v Tara Rajaratnam [1986] 1 MLJ 105. There the fraud was based on
CBT and undue influence in the transfer by the plaintiff’s land. In Eric Chan Thiam
Soon v Sarawak Securities Sdn Bhd. [2000] 4 CLJ 464, per Ian HC Chin J: “The
distinction between civil fraud and criminal fraud cannot hold. It is an attempt at
distinguishing the undistinguishable. “Fraud” has the same meaning whether in
criminal or civil cases. In this case, the standard of proof must be proof beyond
reasonable doubt.”
 In current position, it is now a settled law that the standard of proof required
for an allegation of fraud in civil proceedings must be one of beyond reasonable doubt
and NOT on the balance of probabilities. This can be seen in Asean Security Papers
Mills Sdn Bhd v. CGU Insurance Bhd [2007] 2 CLJ 1 (Federal Court); and Yong Tim
v. Hoo Kok Chong & Anor [2005] 3 CLJ 229 (Federal Court).

Forgery

For forgery in bank charges, the Supreme Court in applying the civil burden of
proof held in United Asian bank Bhd v Tai Soon Heng Construction Sdn Bhd [1993]
1 MLJ 182, following Sykt Islamiyah v Bank Bumiputra Malaysia Bhd [1988] 3 MLJ
218 “The standard of proof required in a case of forgery on the facts of such a case as
the one before the Court is not that of beyond reasonable doubt, but of a balance of
probabilities”. In Boonsoom Boonyanit v Adorna Properties Sdn. Bhd. [1997] 3 CLJ
17, Gopal Sri Ram JCA held that it is a general rule of the common law that, in the
absence of a statutory provision to the contrary, proof in civil proceedings of facts,
amounting to a crime need only be on a balance of probability.
The general rule finds expression in the judgment of the High Court of
Australia in Rejfek v McElroy [1965] 112 CLR. The proof of forgery in civil
proceedings, unlike fraud, comes within the general rule earlier adverted to. That it
need only be established on a balance of probabilities was laid down as long ago as
1855 by the Privy Council in Doe D. Devine v Wilson [1855] 14 ER 581.

Alibi and self defense

The standard of proof of alibi under section 103 had been provided in the case of
Jayasena. The court held in Jayasena that if there is an allegation on a particular fact,
to rebut that fact the quantum of proof is on a balance of probabilities. This was also
held in Dato Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232 (FC), where the
accused relies on the defence of alibi, then he has the legal burden to prove his
defence.

However, the Supreme Court in Yau Heng Fang v PP [1985] 2 MLJ 335 a
dicta
from Mohamed Azmi SCJ that the burden on the accused in cases of alibi is only an
‘evidential burden’, i.e., he needs only raise a doubt in the prosecution’s case. Relying
on Woolmington v DPP [1935] AC 462, the accused has no legal burden to prove his
defence. In that case the Supreme Court followed the English case of R v Johnson
(1961) 46 Cr App R 55 and held that the burden on the accused who relies on the
defence of alibi is only an evidential burden. In these cases, the counsels and the
Supreme Court did not refer to section 103 illustration (b). They chose to rely on
Johnson’s case. It is respectfully submitted that this decision is contrary to the clear
provision of section 103

For defences under section 105, the standard of proof is balance of

probabilities. Since the decision of Jayasena v R [1970] AC 618, [1970] 1 All ER 219
it has been accepted by all the courts in Malaysia that the burden imposed by section
105 on the accused is a legal burden to prove his defence (must prove the case on
balanced of probabilities). The counsel for the appellant submits that the burden
imposed by section 105 is actually the evidential burden (must proof the case beyond
reasonable doubt), is the burden of adducing some evidence in support of the case.
The argument is that the code should be interpreted in the light of Woolmington v
DPP. This argument has been decisively rejected by the Supreme Court of Ceylon in
the case of R v Chandrasekera (1942) 44 NLR 97.

The Privy Council in the Ceylonese case of Jayasena v Reginam [1970] AC

618, [1970] 1 All ER 219 has ruled that the burden of proving accident, provocation,
or self-defence rested upon the accused and could not be construed in the light of a
decision in Woolmington v Director of Public Prosecutions [1935] AC 462 (i.e.,
evidential burden/ beyond reasonable doubt) that had changed the English law.
In the Federation we have been following the decision in Woolmington's case
as is apparent in the judgment of the Court of Appeal (as it was then known) in the
case of Looi Wooi Saik v Public Prosecutor [1962] MLJ 337. The provision of section
105 of the Evidence Ordinance of Ceylon is similar to our section 105. Looi Wooi
Saik’s case would, therefore, appear to have been overruled. In the Federal Court
cases of Lee Chin Hock v PP [1972] 2 MLJ 30 and Lee Thian Beng v PP [1972] 2
MLJ 248 where it was held that the burden of proving the circumstances in section
105 is on accused.
 It is settled law that in criminal proceedings where there is a burden on the
accused it is no higher than that of a party in a civil proceeding, that is to say on the
balance of probabilities. This can be seen in Ikau Anak Mail v PP [1973] 2 MLJ 153.

Matrimonial offences

For matrimonial offences, the standard of proof is beyond reasonable doubt. In Lim
Nyun Yin v. Gan Kim Biow & Ors. [1982] 2 MLJ 68 the petitioner, a Singapore staff
nurse, and the respondent, a Malaysian dental surgeon, were married in 1977 in the
civil marriage registry in Seremban. After their marriage and honeymoon, they were
supposed to set up matrimonial home in Bahau, Negeri Sembilan. As events turned
out, they never really set up any proper matrimonial home in Malaysia or Singapore.
She continued to work as a staff nurse in Singapore and he a dental surgeon in Negeri
Sembilan and they met and had marital intercourse on weekends and holidays on both
sides of the Johore Causeway. This arrangement appeared workable till the
respondent was transferred to the Government dental clinic in Seremban, when the
petitioner became suspicious of his relationship with two staff nurses, the co-
respondents. After signing a separation agreement, the couple decided to live apart.
The petitioner then filed her petition seeking dissolution of the marriage based on the
sole ground of the respondent's adultery with the co-respondents. The evidence in
support was not direct but circumstantial. In his answer, the respondent counter-
charged desertion and cruelty on the petitioner's part and sought divorce on those
grounds. The Court held that Adultery, cruelty, and desertion are serious matrimonial
offences and require proof beyond reasonable doubt. This can be seen in Ng v. Lim
[1969] 1 MLJ 139 & Wee Hock Guan v. Chia Chit Neo &Anor [1964] MLJ 217.

EXCEPTION TO HEARSAY RULE

There are several exceptions to the rule against hearsay namely; A) Statements of persons
who cannot be called as witnesses S.32 of EA 1950 such as dying declarations statement as to
the cause of death, lost/missing or incapable of giving evidence. B) Res Gestae.

General rule of evidence is that the best and relevant evidence available must be
adduced. Section 32 of EA provides the exception to the general rule and allows the reception
of hearsay as evidence. Preliminary Condition is that there are 4 categories of people under S
32 which out of court statements may be accepted in evidence even though they cannot be
called as witness which are, maker who had died, maker cannot be found after diligent
search, or he has been incapable of giving evidence because of his illness of body and mind,
or he is out of jurisdiction and to call him would cause unduly delay and expense.